Smithwick v. Shepherd, 49 N.C. 196, 4 Jones 196 (1856)

Dec. 1856 · Supreme Court of North Carolina

49 N.C. 196, 4 Jones 196

SIMON M. SMITHWICK vs. ABRAM SHEPHERD.

A promise (not in writing) by an administrator, that he would see a debt of his testator paid, or would pay it, is void under the statute of frauds.

This was an action of assumpsit, tried before Saukdees, J., at the Pali Term, 1856, of Martin Sujierior Court.

Albert 0. Shepherd owned, and carried on, a steam sawmill, near Williamston, and under a contract with the plaintiff, boarded himself and his mill-workmen, among whom -was his son, William Shepherd, at plaintiff’s house. The defendant was the administrator of A. G. Shepherd, who had recently died. In a conversation between the plaintiff, the defendant, and one Hartsook, (who was said to be a trustee of A. G. Shepherd,) concerning the estate, the plaintiff spoke of his account and produced it. Hartsook said the defendant was the administrator and he was the man to pay it; when defendant replied that he would see it paid, or it should be paid. Shortly afterwards he did pay thirty dollars, and the warrant then was issued for the balance, and brought up by appeal.

The plaintiff insisted,

1st. That the promise of the defendant was substituted for the original debt.

2nd. That the defendant’s having property applicable to the debt, and having promised to pay, or see it paid, was an assumpsit which discharged the original debtor, and on which plaintiff might rely. This, with the application of a credit thereto, was a consideration to support the promise.

A verdict was rendered for the plaintiff, subject to the opinion of tbe Court, with, an agreement that, if the Court should be of opinion that the action could not be sustained, a non-suit should be entered.

The Court, being of opinion with the defendant, ordered a nonsuit, from which the plaintiff appealed.

No counsel appeared for the plaintiff in this Court.

Dormell. for defendant.

Battle, J.

The declaration -made by the defendant, that he would see the debt of his intestate paid, or that it should be paid, was, if a promise to pay at all, a special promise within the statute of frauds. Revised Stat, ch. 50, sec. 10, (Rev. Code, ch. 50, sec. 15). It was a promise either “ to answer the debt of another person,” or, by an administrator, “ to answer damages out of his own estate,” and, therefore, no action could be brought upon it; because it was not in writing and signed as the statute requires.

If the propositions contended for by the plaintiff were sustainable in this case, they would defeat the effect of the statute in every case, by making the promise operate as a substitute of itself, for the original debt. Such a doctrine cannot, for a moment, be upheld.

The judgment of nonsuit was right, and must be affirmed.

Pee. OubiaM. The judgment is affirmed.